Dalligate, two years later…

Updated on Tuesday, 21 October at 16:48 with OLAF reply

Last Thursday 16 October marked the second anniversary since John Dalli’s forced termination as European Commissioner for Health by the outgoing President of the Commission, Jose Manuel Barroso.

Dalli was forced to resign on the strength of a covering letter to the OLAF (EU anti-fraud agency) investigation, which however stated it had no direct evidence but circumstantial evidence that Dalli was aware of a €60 million bribe sought to reverse the EU ban on smokeless tobacco.

Dalli, a former Nationalist minister, believes that the report of the EU’s anti-fraud agency was a set-up to derail the tobacco directive and always insisted that he was a victim of a coup by the tobacco lobby and various political interests in Brussels and Malta conspiring against him.

Confidential documents published by the Observer revealed the strong lobbying operation waged by tobacco giant Philip Morris International (PMI) to combat the proposed tobacco products directive, employing 161 people on this mission.

The Observer revealed how delaying the directive had been a key goal of the tobacco lobby, spending almost £1.25 million in expenses in just under a year for the lobbyists’ meetings with MEPs. PMI targeted farmers’ organisations, retail bodies, and trade and business associations to reach top decision makers in both the European Parliament and the European Commission.

Only a couple of weeks ago, the France 2 investigative programme ‘Cash Investigation’ suggested that the tobacco industry could have forced the removal of Dalli, quoting from the 600-page internal document from PMI.

Another slide is titled “Strategy: possible Commission reverse tactics”, featuring the objective to “achieve extreme measures by stealth”.

The crucial piece of the document were slides showing a strategy to “target European Commissioner”, using Brussels and international stakeholders, and the media in both pan-European as well national media.

Despite the fact that the case has taken a visible physical toll on him, Dalli remains defiant in exposing the truth behind his “frame-up”.

“These two years have been terrible from a personal point of view. I was exposed to global ridicule and a hate campaign in Malta was waged against me. My health suffered but worst of all, I saw my family hurt a lot,” Dalli says.

I meet him at his office in Portomaso, where he is armed with printouts of the latest online news reports published about him, as well as a copy of a short document published by the Nationalist Party.

“On the other hand, these two years revealed many aspects of how the different European institutions work and how the citizen fares when he confronts them.

I had first hand experience of what it is when these turn against you, especially when they group together.”

Calling it “a persecution” by OLAF and its chief, Giovanni Kessler, because he stood up to them, Dalli insists he is not alone in this.

“During these 24 months I’ve had people contacting me, frustrated, because they found themselves alone and simply could not fight against what happened to them. I chose to fight.”

“But I have also learnt to fight back and I think that now the pieces are coming together. Hopefully, we will see what has really happened and who were the true instigators and collaborators at local level.”

Dalli is not alone in believing that conflicts of interest and corporate interests took over European decision-making. Green MEPs Bart Staes and José Bové accuse Barroso of having “given in to the manipulations of the tobacco industry by sacking” Dalli. The doubts behind the termination of Dalli are so strong that the two believe the saga will become “Barrosogate”.

“Many have tried to wipe these reasons under the carpet, and a lot still stays there. But a few facts are clear. The OLAF report on the so called attempts by Dalli to change the Tobacco Products Directive (TPD) in exchange for cash, was manipulated, partial and biased, full of lies and illegal methods,” the two wrote in EurActiv.com.

They point out that the Swedish tobacco company Swedish Match, a PMI-daughter that started the whole affair, lied on several occasions.

“When the OLAF report and other documents were leaked in 2013, it became more and more clear that the whole affair was a set up to get rid of commissioner Dalli and by doing so delay the TPD. All this was clearly in the interest of companies like PMI that had set up a massive lobby campaign to weaken, delay or stop the new anti-smoking legislation,” Staes and Bové add.

According to Dalli, these two MEPs are not out there to support him but to fight against the institutions that prove themselves as not being transparent.

“They are fighting for transparency. And the fact is that what happened in my case is not transparent at all.”

An investigation by OLAF’s supervisory committee on the anti-fraud agency’s handling of the investigation that led to Dalli’s resignation showed strong critique of both OLAF and Giovanni Kessler. OLAF’s supervisors accused the agency of violating its mandate and breaking EU laws. The committee laid out a damning verdict of the four-month investigation and called into question Kessler’s impartiality.

It accused Kessler’s office of conducting unlawful interrogations in Malta, of intercepting a private telephone conversation, of involving the help of Maltese authorities without a proper legal basis and of overlooking or rushing checks on the legality of its actions in order to speed up the outcome.

The 29-page report also accuses OLAF of instructing the key Dalligate witness – a Maltese-based lobbyist, Gayle Kimberley – to lie.

“This committee was completely disregarded by Barroso. If he were a mediocre manager – not a good one – the least he would have done was to make sure that he was standing on solid ground. How do you achieve that? The best is to make sure that the supervisory committee cleared the report. Did he do that? No. And I can surmise why: he knew he had a mess on his hands and that the report was fraudulent. He knew that the supervisory committee would have never cleared it for him.

“The committee in fact made mincemeat out of OLAF and Kessler,” Dalli says.

Presented in the European Court of Justice, where he instituted a case against the Commission, Dalli says the document shows that his human rights were breached.

In December 2012, Dalli filed a case asking the ECJ to annul the decision taken by Barroso to sack him “as he had no legal base to do it the way he did”.

After various written presentations made to the court over the two years, the ECJ heard witnesses on the 7th and 8th July 2014. 

“One must note that it is exceptional for the ECJ to go into verbal procedures.  Barroso, for the first time in his tenure, was called to give evidence, and he read his evidence from a text that his legal counsel admitted they had prepared for him,” Dalli adds. The case is still to be decided.

Meanwhile, in Malta…

When the OLAF report was handed over to the local authorities, the Maltese police interrogated and later arraigned Silvio Zammit, accused of attempting to influence Dalli over the tobacco directive after soliciting a €60 million bribe from Swedish Match to lift an EU ban on the trade of snus smokeless tobacco, which is legal only in Sweden.

Dalli was never arraigned by Maltese police: While former police commissioner John Rizzo had claimed that there were grounds to arraign Dalli, his successor, Peter Paul Zammit – appointed in March 2013 – first said that there was no case against Dalli and then, according to Kessler, said that the case was not closed.

Zammit’s assurances in the media that no case existed against Dalli led to the former minister being appointed as a consultant on health affairs to Prime Minister Joseph Muscat in 2013.

But testifying in court later on that s, John Rizzo – summonsed as a witness in the compilation of evidence against Zammit – said that when the case first emerged he had the go-ahead from Attorney General Peter Grech to press charges against Dalli over the alleged bribery.

However, the police failed to press charges against Dalli, with Rizzo claiming in court that the former commissioner had been holed up in Brussels during the ensuing months seeking medical treatment, when Malta was in a prolonged, three-month electoral campaign.

A new document, tabled in parliament by Michael Cassar – one of four investigating officers and today head of the Malta Security Service – showed that the Attorney General, the deputy AG, Rizzo, deputy commissioner Joe Cachia and inspector Angelo Gafà “considered that both Silvio Zammit and Hon. John Dalli will be separately charged in court with trading in influence and bribery”.

They also concluded that no charges would be pressed against Kimberley.

Cassar, who did not sign the mentioned report as he was abroad, disagreed with the position taken by his colleagues and was of the opinion that Dalli and Zammit should be arraigned together.

He argued that the evidence the police had against Dalli was only circumstantial and would not have led to a conviction. His opinion, he said, was that there could have been prima facie evidence if they were arraigned together.

According to Dalli’s legal aids, the prosecution would have had a weak case if the two were arraigned together, unless the accused started “spilling the beans” about each other.

“But we all have heard Silvio Zammit say he was offered a presidential pardon to try and convince him to testify falsely against me, something which he refused to do,” Dalli says.

He insists that the document handed by Cassar in parliament – and subsequently published by the PN – was “proof that the police had no case”.

“This makes Simon Busuttil doubly guilty of defamation because as a lawyer he should know that there is no case as explained in this paper. This is just fabrication and nothing else,” he says, reiterating that a decision to arraign him was taken “due to mounting pressure by the GonziPN administration”.

That there’s no love lost between Busuttil and Dalli has been made amply clear after the latter threatened to initiate defamation proceedings against the PN leader; Busuttil retorted back calling him “the Prime Minister’s consultant” – in reference to the consultancy work Dalli carried out at Mater Dei.

Dalli claims that, since becoming leader of the PN, “Simon Busuttil brought the [attacks] in the open”.

He believes there is collusion between “certain elements in the PN and people in Brussels”.

“They wanted me arraigned so that the people in Brussels could be justified over their actions. My belief is that someone promised Barroso that he would have this comfort. The fact that they didn’t deliver is frustrating them.”

He immediately shoots down suggestions that he might be exaggerating: “It’s what the papers controlled by this faction continue to intimate. But it’s the truth. The exaggeration is in their actions. Every time they make this insistence is proof to me that they had a commitment that they are still trying to fulfil.”

With the case against Silvio Zammit ongoing and the two cases opened by Dalli still in court, the question is how will Dalli clear his name?

“I will clear my name because I will prove that what OLAF did was a fraud. That is how I will clear my name. And I will prove it. Why is Kessler afraid to come to Malta? Because he is afraid to face questions. Because he is afraid of what he did. He knows that what he did was completely wrong and he is afraid to face it. And this is how I am going to prove my innocence: by proving the guilt of other people.”

OLAF press office replies

The article of 19 October entitled “Dalligate, two years later” puts forward erroneous facts and assertions that are harmful to the reputation of OLAF.

OLAF would like to clarify the following:

1. In the case concerning former Commissioner Dalli, OLAF carried-out a thorough investigation which revealed serious, verified and verifiable facts. These facts have been accurately reported by OLAF to the authorities competent for follow-up. Subsequent criminal investigations and Court proceedings on the liabilities of the persons concerned are on-going.

2. OLAF has not exercised pressure on any witnesses or persons concerned. You assert that the OLAF Supervisory Committee “accused OLAF of instructing the key Dalligate witness – a Maltese-based lobbyist, Gayle Kimberly – to lie”. At no point in the publicly available Opinion of the Supervisory Committee is there any mention of such an accusation. Your assertion is therefore absolutely false and misleading. OLAF reserves its right to have recourse to any legal action available in order to defend its reputation against such statements.

3. The assessment of the legality of OLAF's investigations lies solely and exclusively with the competent Courts. To date, there has been no Court ruling concerning this case.

4. OLAF is ready to cooperate with the Maltese judicial authorities if and when they should formally request OLAF staff to testify.